Kong Hoo (Pte) Ltd v PP

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JA,Judith Prakash JA,Tay Yong Kwang JA,Steven Chong JA
• Judgment Date: 08 April 2019
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Reference No 4 of 2017
• Date: 08 April 2019

Kong Hoo (Pte) Ltd and another

and

Public Prosecutor

[2019] SGCA 21

Sundaresh Menon CJ, Andrew Phang Boon Leong JA, Judith Prakash JA, Tay Yong Kwang JA and Steven Chong JA

Criminal Reference No 4 of 2017

Court of Appeal

Criminal Law — Offences — Endangered species — Applicants brought consignment of Madagascan rosewood logs into Jurong Port — Madagascan rosewood scheduled species under Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed) (“Act”) — Applicants charged for importing rosewood logs into Singapore without required permits in contravention of s 4(1) of Act — Applicants claimed that rosewood was only in transit and thus fell within s 2(2) of Act instead — Whether rosewood had been imported into Singapore, or was only in transit — Sections 2(2) and 4(1) Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed)

Statutory Interpretation — Penal statutes — Applicants argued that rosewood was not imported, but rather was in transit within meaning of s 2(2) Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed) (“Act”) — Applicants argued that reference to “control” in s 2(2) of Act did not require authorised officer to know that scheduled species had entered his zone of control — Whether rosewood was in transit within meaning of s 2(2) of Act — Whether “control” required conscious oversight — Whether principle against doubtful penalisation applied — Section 2(2) Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed)

Held, answering the questions raised, and quashing the applicants' convictions:

(1) In answer to the first question, for a scheduled species to be in transit, it was not necessary to prove that at the time of entry of the scheduled species into Singapore, the scheduled species would leave Singapore at a definite date, although this was a relevant consideration. Section 2(2) of the ESA stated that a scheduled species would be in transit “if, and only if it [was] brought into Singapore solely for the purpose of taking it out of Singapore”. This was the sole purpose condition. The sole purpose condition required that the sole purpose of bringing the goods in was only to take them out of Singapore, and that this purpose existed at the time the goods were brought in and continued until the goods were brought out of Singapore. The sole purpose condition did not relate to time: at [7(a)], [75], [77], [78] and [80].

(2) The sole purpose condition required the available evidence to point towards the two factors of (a) some final destination outside Singapore for the scheduled species and (b) existing plans to ship the scheduled species to its final destination within a reasonable time: at [110].

(3) In answer to the second question, in determining if a scheduled species which had been removed from the conveyance in or on which it had been brought into Singapore was kept under the control of authorised officer, it was not necessary to show that the authorised officer knew about the arrival and the location of the scheduled species and was in a position to exercise conscious oversight over it: at [7(b)].

(4) The general purpose of the ESA was to give effect to the Convention on International Trade in Endangered Species of Wild Flora and Fauna by regulating the trade and movement of endangered species. The requirement that a scheduled species be under the control of an authorised officer (the “control condition”) in s 2(2) of the ESA supported this general purpose by performing two functions. First, it complemented and furthered the sole purpose condition in that having the scheduled species under the control of authorised officers ensured that the shipment was genuinely intended to be shipped to another country, and not imported into Singapore surreptitiously. Second, it ensured that endangered species were properly transported and managed, even while in transit: at [99], [104] and [106].

(5) Both the Prosecution's and the applicants' proposed interpretations of the control condition would support the general purpose of the ESA and the particular functions of the control condition in s 2(2). The Prosecution's proposed interpretation requiring conscious oversight would place an authorised officer in the best position to ensure that the scheduled species was in Singapore only because it was in transit and treated in a manner that comported with the ESA's objectives, while the applicants' concerns about unfairness to traders were somewhat overstated. Equally, however, the applicants' approach of requiring physical or jurisdictional control would also achieve the same ends, because an authorised officer being empowered to prevent the scheduled species from leaving his zone of control and controlling its movements within the zone was sufficient to prevent the scheduled species being surreptitiously imported into Singapore and ensure that the scheduled species was properly managed and transported even in transit. There was also no evidence to show that there was a regulatory scheme in place that would allow traders to declare that they were bringing in scheduled species. Because both interpretations were equally plausible, the principle against doubtful penalisation applied. Penal consequences would attach if the Prosecution's approach were preferred, and thus the ambiguity would be resolved in favour of the applicants' proposed interpretation of physical control: at [144] to [146].

(6) The parties accepted that the burden of proving the control condition was with the Prosecution: at [148].

(7) The applicants satisfied the control condition. The requisite physical control was present because the Jurong Port free trade zone was a secured area for the temporary storage of goods, and Customs officers at the Port were empowered to prevent unauthorised persons or goods from entering or leaving the zone and surreptitiously being imported into Singapore: at [153] and [154].

(8) The applicants also satisfied the sole purpose condition. The Prosecution had not made out a prima facie case of importation, because evidence put forward by its own witness raised a reasonable doubt that the rosewood was imported. The witness's evidence was that well before the rosewood had arrived in Singapore, the applicants had communicated to him their intention for the rosewood to be shipped out of Singapore to Hong Kong. This was supported by the documentary evidence. Thus, the Prosecution had not crossed the threshold for establishing a prima facie case that the rosewood was imported: at [164], [165], [167], [169] and [170].

(9) Because both the sole purpose condition and the control condition in s 2(2) of the ESA were satisfied, the rosewood was only in transit and had not been imported into Singapore. The charge for importing the rosewood without the required permits in breach of s 4(1) of the ESA was therefore not made out. Accordingly, the applicants' convictions were quashed and their sentences set aside: at [171] and [174].

Case(s) referred to

Chandler v DPP [1964] AC 763 (refd)

Nam Hong Construction & Engineering Pte Ltd v Kori Construction (S) Pte Ltd [2016] 4 SLR 604 (refd)

PP v Lam Leng Hung [2018] 1 SLR 659 (refd)

PP v Low Kok Heng [2007] 4 SLR(R) 183; [2007] 4 SLR 183 (refd)

PP v Sharikat Perusahan Makanan Haiwan Berkerjasama2 [1969] 2 MLJ 250 (refd)

PP v Wong Wee Keong [2015] SGDC 300 (refd)

PP v Wong Wee Keong [2016] 3 SLR 965, HC (refd)

PP v Wong Wee Keong [2016] SGDC 222 (refd)

Tan Cheng Bock v AG [2017] 2 SLR 850 (refd)

Yong Vui Kong v PP [2010] 3 SLR 489 (refd)

Facts

A shipment of Madagascan rosewood (“the rosewood”) was carried by a vessel into Singapore waters. The vessel berthed at Jurong Port, and a portion of the shipment was unloaded from the vessel. The entire shipment was seized by officers from the Agri-Food and Veterinary Authority of Singapore. The applicants, who were responsible for bringing the shipment into Jurong Port, were charged and jointly tried for an offence of importing a scheduled species without a permit under s 4(1) of the Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed) (“ESA”). Madagascan rosewood was a scheduled species listed in the ESA. The applicants did not dispute that they did not have an import permit for the rosewood. Instead, they claimed that the rosewood had not been imported because it was only in transit in Singapore to the final destination of Hong Kong. The applicants were acquitted of the importation charge in the District Court, but convicted on the Public Prosecutor's appeal in the High Court.

The applicants obtained leave from the Court of Appeal to file a criminal reference concerning the interpretation of the transit provision in the ESA, s 2(2). Two questions were asked in the reference. The first asked whether, in order to prove that the scheduled species was in transit, it was necessary to prove that at the time the scheduled species entered Singapore it would leave Singapore at a defined date. The second asked whether it was a requirement for transit that upon the scheduled species being removed from the conveyance in or on which it had been brought into Singapore, an authorised officer had to know that the shipment was of a scheduled species and be in a position to exercise conscious oversight over the shipment. There was also a subsidiary question as to whether the applicants or the Prosecution bore the burden of proof in showing that there was the requisite control.

Legislation referred to

Animals and Birds Act (Cap 7, 2002 Rev Ed)

Control of Plants Act (Cap 57A, 2000 Rev Ed) s 7(1)

Customs Act (Cap 70, 2004 Rev Ed) ss 3(2), 37

Endangered Species (Import and Export) Act (Cap 92A, 2008 Rev Ed) ss 2(1), 2(2)(a), 2(2)(b), 2(2)(c) (consd); ss 3(2), 4(1), 5(1)(b), 20(1)(a)

Endangered Species (Import and Export) Act 1989 (Act 4 of 1989)

Fisheries Act (Cap 111, 2002 Rev Ed)

Free Trade Zones Act (Cap 114, 2014 Rev Ed) s 15

Free Trade Zones Regulations (Cap 114, Rg 1, 2014 Rev Ed) reg...